Sumner v. Parker

36 N.H. 449 | N.H. | 1858

Eastman, J.

Where there are several covenants, promises or agreements, which are independent of each other, one party may bring an action for a breach, without averring or proving performance on his part, and it is no excuse for the defendant to allege in his plea a breach on the part of the plaintiff. It is otherwise where the covenants or agreements are dependent.

Where agreements or covenants are independent as to one party, they are necessarily so as to the other ; so that if any act is to be done, service rendered, or article delivered by a specified day, and the payment therefor is not to be made till a subsequent day, an action may be maintained for a breach of the agreement before the payment falls due. And if the day be appointed for the payment of money, and the day is to happen or may happen before the thing which is the consideration of the money is to be performed, an action may be brought for the money before performance; for in such a case the agreement shows that the party relied upon his remedy, and did not intend to make the performance a condition precedent. And a like rule prevails where no time is fixed for the performance of the thing which is the consideration of the money. Putnam v. Mellen, 34 N. H. 71; Pordage v. Cole, 1 Saund. 320, note ; Dyer 76, a; 1 Salk. 171.

In Pordage v. Cole, 1 Saund. 320, the rule is stated thus: If it be agreed between A and B that B shall pay a sum of money for his lands on a particular day, these words amount to a covenant by A to convey the lands, for “ agreed” is the word of both ; but it is an independent covenant, and A may bring an action for the money before any Conveyance by him of the land.

When a party to a contract refuses to execute any substantial part of his agreement, he thereby gives to the other party the option to rescind the entire contract by offering to restore what he has received, and replacing the parties in their original situation, provided the offer to do this is made in a reasonable time, and the situation of the parties remain so far unchanged that they can be restored to their first position. But the party who would take this ground must do so distinctly and unequivocally. He cannot treat the contract as binding and as rescinded at the same time. Webb v. Stone, 24 N. H. (4 Foster) 282 ; Luey v. Bundy, 9 N. H. 298 ; Snow v. Prescott, 12 N. H. 535 ; Concord Bank v. Gregg, 14 N. H. 331.

These principles settle this case. The defendant gave his note to the plaintiffs for $400, payable on demand. This was an agreement to' pay the money immediately — on the day on which the note was given. The plaintiffs, in the contract signed by them, agreed to convey the land, but fixed no time in which to make the conveyance; and it was consequently to be made within a reasonable time. The agreements between the parties were independent, and each one could resort to his remedy accordingly.

The defendant has never sought to rescind the contract, but, on the contrary, has held the land, enjoying the profits of the same, for more than eleven years after giving the note, before the commencement of the suit, and he is in no situation to avail himself of the doctrine of the rescission of contracts.

It is unnecessary, therefore, to inquire into the other matters brought out in evidence upon the trial. The case cannot be distinguished from Webb v. Stone, 24 N. H. (4 Foster) 282, which is an authority precisely in point, and which had the sanction of a majority of the present bench. The ruling of .the court was correct, and there must be

Judgment on the verdict.